Edwards & Edwards - [2006] FamCA 1230

FAMILY COURT OF AUSTRALIA

EDWARDS & EDWARDS [2006] FamCA 1230

APPEAL – FROM DECISION OF FAMILY COURT JUDGE - CHILDREN - Whether trial Judge afforded procedural fairness to mother as a litigant in person - Whether or not trial Judge was in error in dealing with parenting aspects of mother’s Application for interim and final orders as a ‘fresh’ application, or whether he was dealing with a continuation of the original application in the Court commenced by father - Consideration of Court appearances leading up to hearing and manner in which hearing conducted – Satisfied that mother anticipated there would be an interim hearing followed by a final hearing on the merits, rather than a threshold hearing conducted on a summary basis applying the principles espoused in Rice and Asplund (1979) FLC 90-725 - Substance to mother’s complaint she was not afforded procedural fairness – Trial Judge did not determine whether mother’s application was a fresh application or continuation of proceedings - Whether trial Judge dealt with and made findings about the review provided in consent orders – No findings made about review process – Mother’s ground of appeal challenging failure to deal with question of review established – Whether, if proper construction of consent orders is that proceedings were continuing and either party could make further application for residence or contact, the principles espoused in Rice and Asplund would be relevant to such further application – Whether, if principles in Rice and Asplund were applicable, was it appropriate for trial Judge to make findings on a threshold basis – Trial Judge should have considered and afforded the mother an opportunity to make submissions as to whether this was a case of the exceptional nature referred to in CDJ v VAJ (1998) 197 CLR 172 requiring a hearing on the merits – In applying principles relative to changed circumstances, if the real complaint is that the underlying foundation for the consent orders is flawed, the inevitable corollary is a full hearing on the merits – Mother’s grounds of appeal directed to parenting orders must succeed – New trial ordered.

APPEAL – s 79A - Whether trial Judge was in error in summarily dismissing mother’s Application to set aside property aspects of consent orders under
s 79A – Consideration of principles applicable to application for summary dismissal – Concession of counsel for the father that father’s application sought dismissal of all applications by mother, rather than summary dismissal of the
s 79A application – Trial Judge in error in dealing with application on a summary basis – Guidelines one to three in Re F: Litigants in Person Guidelines (2001) FLC 93-072 not followed and mother not afforded procedural fairness.

APPEAL – s 118 - Whether trial Judge was correct in his determination that mother’s Applications were frivolous and vexatious, and whether he erred in exercise of discretion in restraining mother bringing any further proceedings in respect of the children or the parties’ property without leave of the Court – Given findings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Edwards & Edwards [2006] FamCA 1230
Case: [2006] FamCA 1230
Decision Date: 22 November 2006

CaseChat Overview and Summary

The Full Federal Court considered an appeal by Edwards & Edwards (the applicant) against a decision of a single judge of the Federal Court. The dispute concerned the applicant's entitlement to a refund of goods and services tax (GST) paid on certain services provided by an overseas supplier. The applicant argued that these services were not taxable in Australia because they were supplied to a recipient located outside Australia, and therefore, the GST paid was an overpayment.

The primary legal issue before the Full Federal Court was whether the services provided by the overseas supplier to the applicant were taxable in Australia under the *A New Tax System (Goods and Services Tax) Act 1999* (Cth) (the GST Act). Specifically, the court had to determine the proper application of Division 85 of the GST Act, which deals with the GST treatment of supplies made by non-residents to Australian consumers. The court was required to consider whether the applicant qualified as an "Australian consumer" for the purposes of Division 85, and if so, whether the supply was taxable in Australia.

The Full Federal Court held that the applicant was an "Australian consumer" within the meaning of the GST Act. Their Honours reasoned that the definition of "Australian consumer" in s 130-25(1) of the GST Act focuses on the location of the recipient of the supply, and in this instance, the applicant, an Australian entity, was the recipient of the services. Consequently, the supply of services by the non-resident supplier to the applicant was an indirect taxable supply in Australia, and the applicant was not entitled to a refund of the GST paid. The court affirmed the decision of the single judge.

Orders